Search form

Featured Topics

To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This matter is before the Authority on exceptions to an award of
Arbitrator William L. Corbett filed by the Union under section 7122(a) of the
Federal Service Labor-Management Relations Statute (the Statute) and part 2425
of the Authority's Regulations. The Agency filed an opposition to the Union's
exceptions.

The Arbitrator denied a grievance alleging that on two occasions
employees were exposed to asbestos at levels in excess of federal safety
standards and that the Agency violated the parties' collective bargaining
agreement by refusing to provide the employees medical surveillance.(1) For the following reasons, we conclude that the Arbitrator's
award is not deficient under section 7122(a)(1) of the Statute. Accordingly, we
deny the exceptions.

II. Background and Arbitrator's Award

The parties' collective bargaining agreement establishes asbestos
abatement procedures and asbestos exposure standards.(2) These procedures and standards are
applicable to remodeling construction at SEATAC Airport.(3) All bargaining unit employees who
are exposed to levels of asbestos that are equal to or in excess of those in
the agreement are eligible under the agreement for medical surveillance
programs paid for by the Agency. The agreement incorporates the permissive
exposure limits (PELS) that are defined by OSHA in 29 C.F.R.
§ 1926.1101(c)(1) and (2).(4)

During the course of remodeling construction, a FAA contractor removed
a sheetrock wall from the airport's Main Terminal building. Prior to the
removal, the wall was tested to determine if asbestos abatement procedures were
necessary during its removal.(5) Although tests showed that the joint compound in the wall
contained 6 percent asbestos, the Agency analyzed the wall system as a whole,
which resulted in a finding that there was less than 1 percent asbestos
containing material in the wall.(6) Accordingly, the Agency determined that asbestos abatement
procedures were not required.

A second incident of alleged asbestos exposure occurred when part of a
hallway wall was cut to create a new doorway. At that time, there was no
indication that the wall contained asbestos materials and no asbestos
monitoring was in effect. However, 24 hours later, a substance was noticed
around the door and a sample was sent to a lab for processing. The sample
revealed that 4 percent of the substance was asbestos. As a result, the
area was air monitored and evacuated. The air monitoring, which was concluded
approximately 36 hours after the doorway was cut, revealed nothing
indicating that the level of asbestos exposure exceeded OSHA standards. At that
time, the parties agreed to restore operations.

The Union grieved the Agency's failure to grant employees medical
surveillance after the two incidents of alleged asbestos exposure. The
grievance was unresolved and was submitted to arbitration, where the Arbitrator
framed the issue as:

Whether the release of asbestos from the wall removal project and the
door cut project was in an amount that violated industry practices,
federal/state/local health and safety standards, or other generally recognized
standards.

Award at 3.

The Arbitrator found that the wall removal was consistent with EPA
regulations. He rejected the Union's contention that the asbestos content of
the joint compound alone, and not the wall system as a whole, should have
determined whether asbestos abatement procedures were necessary when removing
the wall. The Arbitrator relied on an EPA clarification to the final rule
requirements of the EPA's National Emission Standard for Asbestos (NESHAP) for
asbestos analysis and removal, which states that, when analyzing the level of
asbestos in a wall, the wall should be measured as a system.(7) In addition, he rejected the
Union's contention that EPA regulations mandated "point counting" of the wall
system to verify the asbestos content.(8) The Arbitrator found that because the wall system as a whole
was less than 1 percent asbestos, the Agency was not required to "point
count" the wall.

With regard to the cutting of the doorway, the Arbitrator determined
that the evidence supported a finding that the level of asbestos exposed did
not exceed federal, state or local safety environmental standards. The
Arbitrator reasoned that the relevant OSHA standards incorporated into the
agreement conditioned medical surveillance on not only the level of exposure
but also the requirement that the level of exposure occur over specific time
periods. Because there was no monitoring in place when the doorway was cut, the
Arbitrator relied on the levels of asbestos measured 34 to 36 hours later,
which did not exceed OSHA standards. He found it "reasonable to conclude" that
those levels were not significantly lower than at the time of the cut given the
facts that asbestos particles had not "migrat[ed]" outside the immediate area
and that people had been moving around in the hallway so as to "kick[] up" any
particles that had settled. Award at 10-11. The Arbitrator also determined that
even if the levels of asbestos exposure had been higher, there was no evidence
that employees had been exposed for the time periods required by the
regulations.

Based on the foregoing, the Arbitrator denied the grievance.

III. Positions of the Parties

A. Union's Exceptions

The Union asserts that the Arbitrator's finding that there was no
statutory violation during the removal of the wall "disregards applicable
statutory law, rule and regulation."(9) Exceptions at 9. The Union claims that the Arbitrator erred
in sustaining the Agency's analysis of the wall as a system. According to the
Union, the Arbitrator's application of the EPA clarification was inconsistent
with the mandates of NESHAP, 40 C.F.R. pt. 61, subpt. M, because the finding
that the joint compound was 6 percent asbestos required that the wall be
point counted.

The Union also contends that the Arbitrator erred in finding that the
level of asbestos exposure from the cutting of the doorway did not exceed OSHA
standards. The Union argues that OSHA regulations required that the air be
monitored during the cutting of the doorway, and that the failure of the Agency
to conduct such monitoring resulted in a lack of evidence as to the actual
level of asbestos exposure at the time of the cut. Thus, the Union asserts that
it should have been given the "benefit of the doubt" as to whether the asbestos
exposure levels had exceeded the OSHA standards.(10) Exceptions at 13.

B. Agency's Opposition

The Agency contends that the Union has failed to show that the award
violates EPA regulations and standards. The Agency submits that the Arbitrator
properly applied the EPA clarification in determining the level of asbestos in
the wall. According to the Agency, when a wall is analyzed for asbestos, it
must first be looked at as a wall system, and point counting is required only
where the level of asbestos in the wall system is greater than 1 percent but
less than 10 percent.

The Agency argues that the Union's contention that the Arbitrator erred
in finding that OSHA standards had not been exceeded when the doorway was cut
is "mere disagreement with the conclusions of the [A]rbitrator." Opposition at
4. The Agency contends that because the cutting of the door was not part of an
asbestos abatement project, air monitoring was not required. According to the
Agency, the Arbitrator utilized the proper OSHA standards in determining that
employees were not exposed to levels of asbestos that warrant medical
surveillance.

IV. Analysis and Conclusions

Where a party's exceptions involve an award's consistency with law, the
Authority must review the questions of law raised by the Arbitrator's award and
the Union's exceptions denovo. National Treasury Employees
Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue
Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v.
FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). An arbitration award is
deficient under section 7122(a)(1) of the Statute only if it is contrary to
law, rule or regulation. Disagreements with an arbitrator's findings of fact
and evaluation of evidence and testimony will not establish that an award is
deficient. American Federation of Government Employees, Local 3295 and U.S.
Department of the Treasury, Office of Thrift Supervision, Washington, D.C.,
51 FLRA 27, 32 (1995).

The Arbitrator's award is based on application of asbestos standards
and procedures set forth in OSHA regulations, 29 C.F.R. § 1926.1101,
etseq., and EPA regulations, 40 C.F.R. §§ 61.141, 763,
etseq., which were incorporated into the parties' agreement. The
parties do not dispute the applicability of these regulations. Rather, the
Union is alleging that the Arbitrator applied the regulations in a way that is
inconsistent with law. The Union's first exception, as to the wall removal,
involves the application of an EPA regulation and a clarification of that
regulation. The Union's second exception, as to the cutting of the doorway,
involves OSHA standards regarding asbestos exposure levels and whether or not
those standards were exceeded.

1. The Arbitrator's Application of the EPA Clarification to the Wall
Removal is Consistent with Law

EPA regulations require that, where the asbestos content of material is
greater than 1 percent but "less than 10 percent as determined by a method
other than point counting by polarized light microscopy (PLM), [the Agency
must] verify the asbestos content by point counting using PLM." 40 C.F.R.
§ 61.141. In response to numerous questions concerning the analysis of
samples containing multiple layers, the EPA issued a clarification to the
NESHAP final rule addressing how to analyze the level of asbestos in a wall.
The clarification states that a wall should be measured as a system by taking a
composite analysis of the percent of asbestos in the joint compound, tape, and
wallboard. 59 Fed. Reg. 542. Where that composite analysis determines the level
of asbestos to be in excess of 1 percent, the wall is classified as an asbestos
containing material and the wall system must be point counted if the level of
asbestos is less than 10 percent. 40 C.F.R. § 61.141.

We reject the Union's contention that the EPA clarification is not
applicable in this case because the level of asbestos in the joint compound
alone was enough to trigger point counting and asbestos abatement procedures.
The clarification clearly states that a wall system should be examined as a
whole. Moreover, even absent application of the clarification, there is nothing
in the regulations preventing the Agency from analyzing the wall as a system.
Therefore, it was appropriate for the Arbitrator to apply the clarification to
the wall removal, and the finding that the wall system contained less than 1
percent asbestos eliminated the need to comply with asbestos NESHAP procedures.

Accordingly, we conclude that the award in regard to the wall removal
is not deficient as inconsistent with law, rule, and regulation.

2. The Arbitrator's Award as to the Cutting of the Doorway is
Consistent with Law

OSHA regulations provide that employers must ensure that employees are
not exposed to an airborne concentration of asbestos that is in excess of 0.1
fiber per cubic centimeter of air as averaged over an 8-hour period. 29 C.F.R.
§ 1926.1101(c)(1). Employers must also ensure that employees are not
exposed to an airborne concentration of asbestos in excess of 1.0 fiber per
cubic centimeter of air as averaged over 30 minutes. 29 C.F.R. §
1926.1101(c)(2). Exposure that reaches or exceeds these levels violates OSHA
standards and, pursuant to the parties' agreement, entitles exposed employees
to medical surveillance.

The Union provides no support, and none is apparent, for its argument
that, because there was no monitoring in place when the doorway was cut,
employees should be given the "benefit of the doubt" in determining the level
of exposure prior to the monitoring. Exceptions at 13. In this regard, the
Arbitrator made a finding of fact that the level of asbestos exposure at the
time of the doorway cut did not exceed the standards provided by OSHA in 29
C.F.R. § 1926.1101(c) and, even if it had, employees were not exposed
to asbestos for the time periods required by the regulation. We defer to these
findings of fact. SeeU.S. Department of Commerce, Patent and
Trademark Office and National Treasury Employees Union, Chapter 243, 52
FLRA 358, 367 (1996). Consistent with this factual finding, there is nothing in
the record to support a conclusion that the award is contrary to law.

Based on the foregoing, we conclude that the Arbitrator's award,
finding that during the cutting of the doorway employees were not exposed to
levels of asbestos warranting medical surveillance, is consistent with law.

V. Decision

The Union's exceptions are denied.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

1. Medical surveillance entitles an
employee to medical examinations and consultations for a specific period of
time at the expense of the employer. 29 C.F.R. § 1926.1101(m)(2) (1995).

2. Asbestos abatement procedures are
the engineering controls and work practices that must be followed to reduce
asbestos exposure levels during the construction, alteration, repair,
maintenance, or renovation of structures that contain asbestos. See 29
C.F.R. § 1926.1101(a)(3) (1995); § 1926.1101(g). Asbestos exposure
refers to the airborne concentration of asbestos to which an employee may be
subjected. See 29 C.F.R. § 1926.1101(f)(1).

Section 12. Bargaining unit employees who have been exposed to
levels equal to or greater than OSHA action levels, will be eligible for
medical surveillance programs paid for by the Employer, in accordance with OSHA
standards/FAA directives.

Id. at 4-5.

4. 29 C.F.R. § 1926.1101(c)(1) and
(2), which are incorporated into Article 77, Section 12 of the agreement,
provide, in pertinent part, that:

(1) . . . The employer shall ensure that no employee is exposed to an
airborne concentration of asbestos in excess of 0.1 fiber per cubic centimeter
of air as an eight (8) hour time-weighted average . . . .

(2) . . . The employer shall ensure that no employee is exposed to an
airborne concentration of asbestos in excess of 1.0 fiber per cubic centimeter
of air (1 f/cc) as averaged over a sampling period of thirty (30) minutes
. . . .

5. Based on the EPA standard
incorporated into the agreement, if the wall contained more than 1 percent
asbestos, then it would be classified as asbestos containing material and be
removed in accordance with asbestos abatement and removal regulations.
See 40 C.F.R. § 61.141 (1995); Award at 3-4.

6. Treating the wall system as a whole
involves a composite analysis of the percentage of asbestos in the joint
compound, tape, and wallboard. See 59 Fed. Reg. 542 (1994); Award at 7.

7. The EPA clarification, which states
that it is intended to provide guidance to the NESHAP final rule codified at 40
C.F.R. pt. 61, subpt. M, states that:

When joint compound and/or tape is applied to wallboard it becomes an
integral part of the wallboard and in effect becomes one material forming a
wall system. Therefore, where a demolition or renovation impacts such a wall
system, a composite analysis of the wall system (percent of asbestos in the
joint compound, tape and wallboard) should be conducted. If the analysis shows
an asbestos content of greater than one percent . . . then the activities would
be subject to asbestos NESHAP.

59 Fed. Reg. 542

8. "Point counting" is a method
utilized to determine the specific level of asbestos in a particular material
that contains greater than 1 percent asbestos. NESHAP requires that "[i]f the
asbestos content [in a material] is [greater than 1 percent but] less than
10 percent as determined by a method other than point counting . . . [the
Agency must] verify the asbestos content by point counting . . ." 40 C.F.R.
§ 61.141 (providing definitions for 40 C.F.R. pt. 61, subpt. M).

9. The Union also advances, without
further elaboration, a third incident in which the Agency allegedly violated
asbestos removal procedures. In addition, the Union contends that the Agency
violated a Memorandum of Understanding (MOU) that was executed by the parties
allegedly regarding asbestos safety procedures. The record of this case
provides no basis on which to conclude that either the incident or the MOU were
raised as issues to the Arbitrator, and they were not addressed by the
Arbitrator. Therefore, neither issue can be considered by the Authority.
See 5 C.F.R. § 2429.5.

10. The Union also asserts that the
Arbitrator's decision is contrary to law, rule or regulation because he did not
find that the Agency acted improperly by not conducting air monitoring at the
time the doorway was cut. There is nothing in the record to show that this
issue was raised to the Arbitrator, and the Arbitrator did not address it in
his award. Thus, the Authority cannot consider the issue. See 5 C.F.R.
§ 2429.5. Moreover, even assuming, arguendo, that the Agency
violated OSHA regulations by not conducting air monitoring at the time the
doorway was cut, the violation would not necessarily entitle employees to
medical surveillance. As set forth supra, medical surveillance
requirements are triggered only by levels of asbestos exposure, and the
Arbitrator determined that the level of asbestos exposure had not exceeded OSHA
standards.